Browne v. Coleman

Me. Justice McBeide delivered the opinion of the court. 1. When this matter was before the court in ejectment (Smith v. Whiting, 55 Or. 393, 106 Pac. 791), we held that the service of citation and notice was jurisdictional, and that, unless proved by the proper return on file in the county court, that court had no jurisdiction to order the sale. No such return appearing on file and the published notice of sale required defendants to appear on the last day of publication, we held that the proceeding was wholly void, and affirmed the judgment for plaintiff in that action. While equity may relieve against the defective execution of a power created by the parties, it is incapable of relieving against the defective execution of a power created by statute. Freeman, Void Jud. Sales, § 55; Bright v. Boyd, 1 Story, 486 (Fed. Cas. No. 1,875) ; Young v. Dowling, 15 Ill. 481, 485. Therefore, if the sale was void at law, by reason of want of jurisdiction in the county court to order it, and want of power in the administrator to make it, it is equally void both at law and in equity. Any other rule would make a court of equity a legislative body with power to amend the statute in each particular case to meet supposed hardships which might ensue from enforcement of the statute. 2. It does not follow, however, that a sale absolutely void in law may be ineffective for every purpose. If the conduct of the parties was such as to lead purchasers to believe that they recognized it as a genuine sale, and to induce them to purchase where otherwise they would not [460] have purchased, or if, after the sale has been made, they, with knowledge of the facts, accept their proportion of the money obtained by the purchase, an estoppel may arise which may be as effective in equity to bar their right as if a regular valid sale had taken place in the first instance. We do not think such an estoppel arises from mere failure to appear and contest the proceeding in the county court in the first instance. The law provides the method by which a party may be brought into court, and, if this method is not followed, he is under no legal or moral obligation to voluntarily submit himself to the jurisdiction. He may stay out of court and allow the moving party and purchasers under the sale to proceed at their peril. The record is always available to a purchaser, and, in the absence of any affirmative act by the heir tending to mislead the purchaser, he is not chargeable with constructive fraud merely because he does not seek out such purchaser and warn- him of defects in the proceedings. The heirs and widow in this case did nothing to mislead the plaintiff and his copurchaser. They simply declined to appear, and the purchasers, without examining the record, bought the property. It is true that they paid full price for it, and, no doubt, thought the sale valid, but this fact can make no difference as to the validity of the sale. 3. A large part of the money received from the sale was used to pay the debts of the estate, which were a charge upon the land, and in equity and good conscience the defendants should not recover the land freed from these charges, but, as a condition precedent, they should be required to repay this amount, together with the lawful interest from the date of the administrator’s sale. Certain of the heirs accepted their distributive share of 'the estate which arose wholly from the proceeds of this sale and their receipts are on file here. 4. We are satisfied from the testimony in the case, [461] particularly that of E. L. Smith, who was' administrator of the estate and a brother of the other heirs, that those who acecpted the distributive share paid them were at the time fully aware of the proceedings in the county court and of the sale, and were fully acquainted with their rights in the matter, and they are thereby estopped to question the validity of the sale. Pursley v. Hays, 17 Iowa, 310; Deford v. Mercer, 24 Iowa, 118 (92 Am. Dec. 460) ; Mote v. Kleen, 83 Neb. 585 (119 N. W. 1125: 131 Am. St. Rep. 654). As to these heirs the decree should be reversed, and as to the remaining parties it should be affirmed, subject to the repayment of their proportion of the purchase money and taxes with lawful interest thereon. 5. It is claimed that the circuit court is without jurisdiction to admeasure dower, but it is held otherwise in Baer v. Ballingall, 37 Or. 416 (61 Pac. 852). 6. It is claimed that the curative statute (Section 7156, L. O. L.) bars the right of defendants in this case, but such statute is limited in its operation to “irregularities, defects or informalities,” and it is evidently not intended to extend to sales which are absolutely void, and such has been the holding of this court (Mitchell v. Campbell, 19 Or. 198: 24 Pac. 455; McCulloch v. Estes, 20 Or. 349: 25 Pac. 724; Fuller v. Hager, 47 Or. 242: 83 Pac. 782: 114 Am. St. Rep. 916). The decree of the circuit court will be modified in the respects indicated in this opinion, and neither party will recover costs in this court. The costs of the circuit court will stand as there decreed. Modified.